HBO’s Divorce Ep. 9, Another Party; Commentary by MC

HBO’s Divorce: Episode 9 – From Mollie’s Perspective By Mollie Caplis

In Episode 9 of HBO’s Divorce, Robert and Frances DuFresne attend another four-way meeting with their attorneys. The topic for the meeting was the parties’ children, Tom and Lila. Robert’s attorney, Tony Silvercreek, posed a series of questions to Frances, such as which parent attends the kids’ pediatrician and dentist appointments and who is responsible for taking the kids to school and their activities. From the line of questions, Frances deduces that Robert thinks he should have custody of the kids because he is the more “hands on” parent. In Frances’ defense, her high-paying job in Manhattan, along with the associated commute, is the one and only reason why she is unable to be as present with the kids as she would like. Following that meeting, Frances makes every attempt she can to look like an involved, focused parent and she also decides to get a new lawyer.

As soon as children are involved in a family law dispute, the term, “custody,” is often used and frankly, misunderstood. In Maryland, there are two components of custody – legal and physical. Legal custody relates to which party is responsible for making decisions regarding a child’s education, medical care, and general well being, such as religious training and discipline. Whether by agreement or court order, legal custody may be fashioned as follows: (1) one party may have sole legal custody; (2) parties may share joint legal custody; or (3) parties may share joint legal custody with one party to have tie-breaking authority. Regardless of the form of legal custody, each parent has the right to access medical and school records of a child unless a court orders otherwise.

On the other hand, the term, physical custody, relates to the time each parent spends with the child. The physical custody arrangement can be primarily with one parent or shared between the parents. Although the term, shared custody, is a generic concept, as it relates to the Maryland child support guidelines, it means that one parent has the child overnight at least 35% of the year, which equates to 128 overnights.

In considering custody disputes, the guiding standard is the best interests of the child. While this standard is often referenced by attorneys in their advocacy of a client’s custody position, it is not defined by statute or case law in Maryland. Nonetheless, there are cases that enumerate general criteria to be considered. Although the standard affords courts wide discretion to decide which custodial arrangement is in a child’s best interests, certain relevant factors include: (1) the fitness of the parents; (2) preference of the child; and (3) residences of parents and opportunities for visitation. When considering a joint custody arrangement, courts are often asked to consider the capacity of parents to communicate and to reach shared decisions affecting the child’s welfare as well as the demands of parental employment and opportunities for time with the child.

There is no question that during the course of a custody dispute, parents’ emotions are heightened. As a result, communication often breaks down, albeit temporarily until there is a resolution. Is there any doubt that Frances committed a technical foul, so to speak, by having a private process server serve Robert with divorce papers in the middle of Lila’s basketball game? No. There is also no doubt that a certain level of gamesmanship is played during the course of a custody dispute. Case in point: Frances awkwardly attending a committee meeting at the kids’ school to plan an upcoming event with other parents whom have never met Frances before. Or Frances taking the kids to her friends’ party as her special guests. In the end, Frances’s job and its demands are a relevant and important consideration to the parties’ custodial arrangements; however, I do not think it necessarily means that a shared access schedule cannot work for the DuFresne family.

– Mollie G. Caplis is an attorney at Wright, Constable & Skeen, LLP. Her practice focuses on family law issues, which include separation and divorce, custody (including third party custody disputes involving grandparents), child support, alimony, prenuptial and postnuptial agreements, as well as domestic violence and adoptions. Ms. Caplis has also been collaboratively trained to handle family law disputes. She is a frequent speaker on domestic relations issues facing families in transition. Read more >>